Elliott v. Henry County, TN CV-98-637-JD 08/27/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sheila Elliott

v. Civ. No. 98-637-JD

Henry County, Tennessee, et al.

O R D E R

The plaintiff, Sheila Elliott, brought this action against

the defendants, Henry County, Tennessee; Leon Williams; Strafford

County, New Hampshire; Richard Cavanaugh; Robert Sinclair;

Transcor America, Inc.; Marlene Vogel; Sylvester Rush;1 Junious

Hamm, Jr.; and unidentified agents, asserting claims under

and 1988, and New Hampshire state law. Before

the court is the motion to dismiss of defendants Henry County,

Tennessee, and Leon Williams for lack of personal jurisdiction

pursuant to Federal Rule of Civil Procedure 12(b)(2) (document

30) .2

1Sylvester Rush has been voluntarily dismissed from this case.

2In the present motion to dismiss (document no. 30), Henry County, Tennessee, and Williams (the "defendants") renew their earlier motion to dismiss (document no. 14) filed before the plaintiff amended her complaint. This order therefore resolves both of the defendants' pending motions. Background3

On November 22, 1995, the State of New Hampshire issued an

arrest warrant for the plaintiff, Sheila Elliott.4 On December

22, 1995, Elliott was arrest by Paris, Tennessee, police pursuant

to the arrest warrant. She was held in custody from December 22,

1995, until December 31, 1995, in the Henry County, Tennessee,

jail, under the supervision Leon Williams, the Sheriff of Henry

County. During her incarceration and her subsequent

transportation Elliott was deprived of necessary medical

3The following does not constitute findings of fact of the court and is provided for context purposes only. The events described are derived from the allegations of the amended complaint and reasonable inferences drawn therefrom. See Massachusetts School of Law at Andover, Inc. v. American Bar A s s 'n ,

(1st Cir. 1998) .

4The warrant, as relevant, read:

To the sheriff of any county in this state, or his deputies or any police officer of any city or town within the state:

We command you to take the defendant, if found to be within your precinct, and bring him [sic] before the Rochester District Court.

Pl.'s O b j . to Defs.' Henry County and Leon Williams Mot. to Dismiss, E x . A l .

The court also notes the inconsistent spelling of the plaintiff's name in this record.

2 treatments.

On December 28, 1995, a hearing was held at the General

Sessions Court House, Henry County, Tennessee, concerning

Elliott's extradition to New Hampshire. At the hearing Elliott

signed a document governing the terms of her extradition to New

Hampshire, which the court accepted and entered as an order. The

document stated:

Sheriff's Office Henry County, Tennessee

I, Sheila E. Elliot, hereby certify that I freely and voluntarily agree to accompany New Durham New Hamphire [sic] P.D. as a prisoner of Strafford County, State of New Hampshire for the purposes of answering the charge of Interference of Custody there pending against me.

Furthermore, I hereby waive all formality and am willing to return to Strafford Co. with the said officers without the Governor's reguisition or other paper legally necessary to such cases and I Exonerate Henry County Sheriff's Dept, and all other officers of the said department, from any blame, compulsion, or interference in this connection.

12/28/95 Def w/ advice of counsel states in open Court she desires to waive extradition & proceed to New Hampshire - Waiver accepted

Pl.'s Obj. to Defs.' Henry County and Leon Williams Mot. to

Dismiss, E x . A 2 .

On December 31, 1995, Henry County and Leon Williams, acting

through deputies and jailers under their control and supervision.

3 delivered the plaintiff to Marlene Vogel, an employee of Transcor

America, Inc., and an unidentified male employee of Transcor.

Transcor America is a for profit business engaged in the business

of transporting prisoners under contract with various

governmental agencies.5

On December 31, 1995, Transcor's employee Vogel stripped

Elliott of her clothes and had her stand naked, move her body

parts, and exhibit herself. She was thereafter put into leg

irons, handcuffs, and placed in a van in a small metal cage. The

van seat did not have a seat belt or harness restraint. The

plaintiff was unable to move her hands and feet, and was tossed

about in the cage throughout the journey. Transcor agents

refused to inform Elliott where she was, where she was going,

what the date was, or when she might arrive in New Hampshire.

Elliott was placed in a number of jails and holding cells in

substandard conditions, and was reguired to sleep on floors of

jails without proper bedding. Despite cold weather, the

plaintiff was not allowed any additional clothing beyond the

lightweight clothing she wore at the time of her arrest. During

her transportation, the plaintiff's medical needs, including

treatment for asthma, were unattended.

51he delivery apparently occurred in Henry County, Tennessee.

4 Transcor refused to allow the plaintiff to contact her

family or an attorney and deprived her of her opportunity to be

released upon bail. On January 1 , 1996, Elliott arrived at and

was released to the Strafford County House of Corrections.

Again, she was stripped of her clothes, required to stand naked,

move her body parts, and exhibit herself. Thereafter, each time

the plaintiff was visited by an attorney, priest, health care

provider, or family, or each time she attended court, the

plaintiff was strip searched.

The charge upon which the plaintiff was arrested was

eventually dismissed on the basis that the plaintiff did, in

fact, have joint custody of her son.

In her amended complaint the plaintiff asserts violations of

federal and state laws against all defendants in Count I

(unreasonable search), Count II (unreasonable arrest); Count III

(unlawful transportation); Count IV (violation of right to speedy

trial, assistance of counsel, and bail); and Count V (violation

of right to privacy). The plaintiff asserts further claims under

state law against all defendants in Count VI (assault and

battery); Count VII (negligence); Count VIII (negligent

infliction of emotional distress); Count IX (intentional

infliction of emotional distress); Count X (respondeat superior);

and Count XI (negligent hiring, training, and supervision).

5 Discussion

The plaintiff has the burden of demonstrating facts

sufficient to establish personal jurisdiction over the

defendants. See United Elec., Radio and Machine Workers v. 163

Pleasant St. Corp.,

, 1090 (1st Cir. 1992) ("United

El e c . I"), rev'd on other grounds,

(1st Cir. 1993);

Concord Labs., Inc. v. Ballard Medical Prods.,

(D.N.H. 1988); Velcro Group Corp. v. Billarant,

(D.N.H. 1988) . Employing the prima facie analysis for

determining personal jurisdiction, the court takes "specific

facts affirmatively alleged by the plaintiff as true (whether or

not disputed) and contrue[s] them in the light most congenial to

the plaintiff's jurisdictional claim."6 Massachusetts School of

Law at Andover, Inc. v. American Bar Ass'n.,

(1st

Cir. 1998). The court then adds "to the mix facts put forward by

the defendants, to the extent that they are uncontradicted."

In addition, the court construes all reasonable inferences in

favor of the plaintiff. See Velcro Group,

.

In this case the court's subject matter jurisdiction is

6The parties do not reguest a hearing on the issue of personal jurisdiction, nor is the record "rife with contradictions." Bolt v. Gar-Tec Prods., Inc.,

(1st C i r . 1992).

6 predicated upon both the diversity of citizenship of the parties

and the federal law under which various claims of the plaintiff

arise.7 "When the district court's subject-matter jurisdiction

rests wholly or in part on the existence of a federal question,

the constitutional limits of the court's personal jurisdiction

are drawn in the first instance with reference to the due process

clause of the fifth amendment." Lorelei Corp. v. Guadalupe,

(1st Cir. 1991). The Fifth Amendment permits the

exercise of personal jurisdiction over a defendant in a federal

question case "'if that defendant has sufficient contacts with

the United States as a whole.'" I d . (quotinq Whistler Corp. v.

Solar Electronics, Inc.,

(D. Mass.

1988)). Furthermore, "sufficient contacts exist whenever the

defendant is served within the sovereiqn territory of the United

States."

A statutory limitation to a federal court's exercise of

personal jurisdiction exists under Federal Rules of Civil

Procedure 4 (f) and (e). Rule 4 (f) confines the service of

process issued by federal courts to the "territorial limits of

the state in which the district court is held." Fed. R. Civ. P.

7The court notes the lack of complete diversity between the parties which, althouqh not relevant to the present motion, potentially implicates the court's subject matter jurisdiction.

7 4(f) (West 1999). Rule 4(e), however, authorizes extra­

territorial service in instances where "a United States statute

provides for such service," and, "[i]f no federal statute

exists," in accordance with "the law of the state in which the

district court sits." Lorelei,

.

In this case, as in Lorelei, no federal statute exists and

the court defers to the state long-arm statute as authorized

under Rule 4 (e). To exert jurisdiction over a defendant under a

state's long-arm statute, the exercise of jurisdiction must

comport with both the strictures of the state statute and with

the Due Process Clause of the Fourteenth Amendment. See i d .

_____ The defendants moving for dismissal are Henry County,

Tennessee, and Williams ("defendants"). The New Hampshire

long-arm statute governing individuals is New Hampshire Revised

Statutes Annotated ("RSA") § 510:4(1) (Supp. 1994). In Phelps v.

Kingston,

(1987), the New Hampshire Supreme

Court interpreted RSA § 510:4 to afford jurisdiction over foreign

defendants "to the full extent that the statutory language and

due process will allow." See also, Estabrook v. Wetmore,

(1987) ("This court has consistently interpreted

this statute to grant jurisdiction whenever the due process

clause of the United States Constitution permits it.") .

Under Tennessee law, Henry County is a corporation. See Tennessee Code Annotated ("TCA") § 5-1-103 (West 1999) ("Every

county is a corporation and the members of the legislative body

of each county assembled are the representatives of the county

and authorized to act for it."). Furthermore, TCA § 5-1-105

(West 1999) provides that "[s]uits may be maintained against a

county for any just claim, as against other corporations." RSA

§ 293-A:15.10 (1998) is the New Hampshire long arm statute

governing service on foreign corporations, and it "includes no

restriction upon the scope of jurisdiction available under state

law and thus authorizes jurisdiction over such entities to the

full extent permitted by the federal Constitution." Sawtelle v.

Farrell,

(1st Cir. 1995).

Although the defendants assert that the reguirements of New

Hampshire's long arm statutes are not met, the court assumes for

the purposes of this order that New Hampshire statutory

reguirements are satisfied. See Massachusetts School of Law at

Andover, 142 F.2d at 35 (addressing lack of jurisdiction under

Due Process Clause rather than state long arm statute).

Therefore, the court's personal jurisdiction analysis of the

claims asserted against Henry County and Williams proceeds to a

Due Process Clause analysis.

9 I. General Jurisdiction

The plaintiff asserts that both general jurisdiction and

specific jurisdiction exist over the defendants. The exercise of

general personal jurisdiction over a party is appropriate "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. I , 960 F.2d at 1088. Again, it

is the plaintiff's burden to affirmatively allege facts in

support of personal jurisdiction. See, Massachusetts School of

Law,

.

The plaintiff does not affirmatively allege that the

defendants have engaged in any conduct, whether within New

Hampshire or not, beyond those allegations immediately related to

the claims in this case. The plaintiff simply asserts that she

may, with further discovery, be able to demonstrate that the

defendants engage in systematic and substantial activity in New

Hampshire when they enforce New Hampshire warrants and violate

extradition waivers, but that it is unknown how often they engage

in such activity.8 The record compels a conclusion that the

plaintiff has not affirmatively alleged facts to support a

8The plaintiff does not reguest that the court continue ruling on the motion pending further discovery.

10 finding that the defendants have engaged in continuous and

systematic activity in New Hampshire. The exercise of general

jurisdiction over the defendants is therefore unwarranted.

II. Specific Jurisdiction

The First Circuit uses a tripartite analysis to determine

whether exercising specific personal jurisdiction over a

defendant comports with the Due Process Clause. See

Ticketmaster, 26 F.3d at 206-12; United Elec. I , 960 F.2d at

1089. The court first inguires whether the plaintiff's claims

underlying the litigation directly arise out of, or relate to,

the defendants' forum-state activity. See Ticketmaster, 26 F.3d

at 206. Such activity must be an important or material element

of proof of the plaintiff's case. See United Elec. I , 960 F.2d

at 1089. The inguiry reguires a showing of both cause in fact

and legal cause, i.e., but-for causation and proximate causation.

See Massachusetts School of La w ,

. The court next

inguires whether "the defendant's in-state contacts . . .

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."

United Elec. I, 960 F.2d at 1089. Finally, the court inguires

11 whether exercising jurisdiction would comport with fair play and

substantial justice, which entails analysis of the "gestault"

factors discussed more fully below. See Ticketmaster, 26 F.3d at

209-12. As a preliminary issue, the court must identify the

conduct properly attributable and/or imputed to defendants Henry

County and Williams. The plaintiff's claims arise from a

continuum of events beginning with her allegedly unlawful arrest,

search, and detention in Tennessee, her subseguent placement with

and transport by defendant Transcor to Strafford County, New

Hampshire, and conduct which occurred upon her arrival at and

during her confinement in the Strafford County House of

Corrections.

Although the plaintiff alleges in her complaint that

Transcor was at all times an agent of Henry County and Williams,

she does not appear to argue in her revised memorandum of law

that personal jurisdiction over Williams and Henry County is

warranted on the basis of such an agency relationship. In any

event the court concludes that the actions of Transcor cannot be

imputed to Henry County or Williams on an agency theory in this

case.

The Restatement (Second) of Agency (1958) § 1 states that

Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his

12 control, and consent by the other so to act.

It is a "legal concept which depends upon the existence of

required factual elements" including manifestation by the

principal that the agent shall act for him, the agent's

acceptance, and their agreement that "the principal is to be in

control of the undertaking." I d . c m t . b. Both Tennessee and New

Hampshire follow the Restatement in this regard. See Singh v.

Therrien Management Corp.,

(1995); Investors

Syndicate v. Allen,

(1955); see also, Haskins

v. Yates, Civ. No. ------ ,

at *4 (Tenn. C t . A p p .

A u g . 5, 1988).

The record does not indicate that Williams or Henry County

agreed to have Transcor act as it agent. Nor does the record

indicate that Transcor was subject to the control of Henry County

or Williams after it had acquired custody of the plaintiff.

Indeed, the documents filed by the plaintiff indicate that if

Transcor was acting as an agency of any party, it would be

Strafford County. Transcor's contract, titled "Prisoner's

Receipt," states that Marlene Vogel, an employee of Transcor, is

"the duly appointed agent for . . . Strafford County . . ." and

the assignor is identified as Richard Cavanaugh. Pl.'s Obj. to

Defs'. Henry County and Leon Williams Mot. to Dismiss, Ex. A3.

Transcor's apparent agency relationship with Strafford

13 County is consistent with the provisions of the Uniform Criminal

Extradition Law, which both Tennessee and New Hampshire have

enacted. See RSA ch. 612; TCA tit. 40 ch. 9 (1998). These

statutes provide for the arrest and delivery of a person to the

duly authorized agent of the demanding state. See, e.g., RSA

§ 612:8 (1998) (officers authorized "to deliver the accused,

subject to the provisions hereof, to the duly authorized agent of

the demanding state."); TCA § 40-9-118 (1998) (same). RSA

§ 612:10 and TCA § 40-9-119 provide terms controlling the

delivery of the person to the agent "appointed" to receive the

person. Transcor's contract specifically provides that it is the

"duly appointed states agent for" Strafford County.

The court therefore concludes that the conduct properly

attributable to Henry County and Williams in considering the

exercise of personal jurisdiction over them is limited solely to

the conduct of Henry County, Williams, and their deputies or

employees. Indeed, despite her allegations of an agency

relationship, in her arguments in support of personal

jurisdiction the plaintiff relies on conduct that occurred in

Tennessee prior to the transfer of custody of the plaintiff to

Transcor.9

91he plaintiff asserts in the alternative that Transcor was the agent of Cavanaugh and Strafford County.

14 A. Relatedness

"In order for the extension of personal jurisdiction to

survive constitutional scrutiny, a claim must 'arise out of, or

be related to, the defendant's in-forum activities.'"

Massachusetts School of Law, 142 F.2d at 35 (quoting

Ticketmaster, 26 F.3d at 206). In cases where tort claims are

asserted. First Circuit jurisprudence "customarily look[s] to

whether the plaintiff has established 'cause in fact (i.e., the

injury would not have occurred 'but for' the defendant's

forum-state activity) and legal cause (i.e., the defendant's

in-state conduct gave birth to the cause of action).'" Id.

(quoting United Elec. I , 960 F.2d at 1089) .

The plaintiff argues that her initial arrest and detention

in Tennessee pursuant to a New Hampshire warrant and the

defendants' alleged subsequent arrangement in Tennessee for her

transport back to New Hampshire is sufficient to meet the

requirements of the "relatedness" prong of the First Circuit's

Due Process analysis. Yet none of this conduct occurred in New

Hampshire. Moreover, the locus of her injuries or harm, inter

alia, her alleged unlawful arrest, detention, and search, her

assault and battery, and the invasion of her privacy, occurred in

Tennessee where she was subjected to the acts attributable to

Williams and Henry County. See Ziegler v. Indian River County,

15

(9th Cir. 1995) (harm is felt where arrest

occurred). The mere fact that the defendants acted pursuant to a

New Hampshire warrant or that they detained a New Hampshire

resident does not suffice to subject them to the personal

jurisdiction of this court. See Williams v. Cook County

Sheriff's Dept., No. 93 C 212,

, at *2 (N.D. 111.

Feb. 22, 1995); Cook v. Holzberqer,

(S.D. Ohio

1992). Nor is the act of placing a phone call to New Hampshire

to notify authorities of the apprehension of the plaintiff,

assuming this occurred, an adeguate basis for asserting

jurisdiction. See Williams,

at *2 (and cases

cited) ("a phone call by a law enforcement official from one

state notifying a law enforcement agency in another state of the

apprehension of a wanted person does not give rise to minimum

contacts sufficient to subject the law enforcement officer to

personal jurisdiction") .

The court concludes, therefore, that the plaintiff's claims

and the underlying conduct of the defendants is not sufficiently

related to the State of New Hampshire to support the exercise of

personal jurisdiction over them. See, e.g., Massachusetts School

of Law,

. Similarly, the plaintiff has failed

to meet her burden of demonstrating purposeful availment or that

jurisdiction is warranted given consideration of the "gestault

16 factors."

B. Personal Availment

The "[fJunction of the purposeful availment requirement is

to assure that personal jurisdiction is not premised solely upon

a defendant's random, isolated, or fortuitous contacts with the

forum state." Sawtelle,

(quotations and

citations omitted). The First Circuit's analysis of purposeful

availment considers the voluntariness of the defendant's relevant

actions, and whether the court's exercise of jurisdiction over

the defendant would be foreseeable. See

.

The plaintiff arques that the defendants purposefully

directed their activities at a New Hampshire resident, were

contacted by a New Hampshire County Sheriff's Department with

which they made transportation arranqements, and then contacted

the New Durham Police Department to obtain a copy of the warrant.

The plaintiff has cited no precedent to support her arqument that

such conduct constitutes purposeful availment sufficient to

support personal jurisdiction. Indeed, other courts that have

addressed similar factual scenarios have concluded just the

opposite. See Williams v. Garcia,

(E.D. Mich. 1983); see also, Williams v. Cook County Sheriff

Dept.,

at *2.

17 Although the plaintiff alleges that the defendants

purposefully directed their actions at a New Hampshire resident

and subseguently facilitated her transfer to the agent of

Strafford County, all of this conduct occurred in Tennessee and

had its injurious effect in Tennessee. The only possible conduct

through which the defendants purposefully and affirmatively

availed themselves of New Hampshire could be telephone calls made

by the defendants to New Hampshire authorities. The plaintiff's

allegations in this regard are vague. Assuming, however, that

the defendants phoned New Durham and Strafford County authorities

to inform them that the plaintiff was in their custody and to

facilitate the delivery of the plaintiff to Strafford County's

agent in Tennessee, such conduct is not an adeguate basis for

jurisdiction. See Williams v. Garcia,

; see

also, Williams v. Cook County,

at *2.

The court cannot conclude that the exercise of jurisdiction

in this state would be foreseeable. There is no indication that

the defendants have entered this state, have engaged agents in

this state, or have engaged in conduct out of this state which

caused injury within the state.

C. Gestault Factors

Finally, the court considers whether exercising jurisdiction

18 would comport with fair play and substantial justice. See

Ticketmaster, 26 F.3d at 209-10. In this inquiry the court

considers five "gestalt" factors:

(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.

I d . at 2 0 9.

The First Circuit has noted that "the concept of burden is

inherently relative, and, insofar as staging a defense in a

foreign jurisdiction is almost always inconvenient and/or costly,

[] this factor is only meaningful where a party can demonstrate

some kind of special or unusual burden." Pritzker v. Yari,

(1st Cir. 1994). In this case there is no special or

significant burden.

Although New Hampshire has an interest in redressing harm

done to its residents, all of the acts properly attributed to

Williams and Henry County, and the injuries flowing therefrom,

occurred outside the state of New Hampshire. In such

circumstances. New Hampshire's interest in adjudicating the

claims asserted against Williams and Henry County is greatly

diminished. See Sawtelle,

(this factor cuts

against jurisdiction when "the acts comprising the defendants'

19 alleged negligence occurred almost entirely outside of New

Hampshire."). The plaintiff's choice of forum is presumably the

most convenient and "must be accorded a degree of deference."

However, it also appears that many witnesses may reside in

Tennessee and other states between Tennessee and New Hampshire.

See Ticketmaster, 26 F.3d at 211 (considering location of

witnesses) .

Finally, although the court does not find that the

administration of the judicial system significantly affects the

analysis in this case, public policy weighs heavily in favor of

not exercising jurisdiction. Should the court exercise personal

jurisdiction over the defendants in this case, there would be

few, if any, instances where law enforcement officers and police

departments would not be subject to the personal jurisdiction of

out of state courts simply because they assisted in extradition

proceedings involving that state's residents or extradition

reguests. See Cook,

.

Conclusion

In light of the above discussion, the court concludes that

the exercise of personal jurisdiction over the defendants would

violate the defendants' due process rights. The court therefore

grants the renewed motion to dismiss for lack of personal

jurisdiction of Henry County, Tennessee, and Williams (document

20 no. 30), as well as the initial motion to dismiss (document no.

14) .

SO ORDERED.

Joseph A. Diclerico, Jr. District Judge

August 26, 1999

cc: James W. Craig, Esguire Peter G. Beeson, Esguire James H. Drescher, Esguire Michael D. Ramsdell, Esguire Brian T. Tucker, Esguire

21