Elliott v. Armor Holdings, Inc. CV-99-337-B 01/12/00

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

J. Michael Elliott

v. Civil N o . 99-337-B Opinion N o .

Armor Holdings, Inc.

MEMORANDUM AND ORDER

J. Michael Elliott brought this action against his former

employer, Armor Holdings, Inc., claiming that Armor Holdings

breached its contract with him by failing to provide him with

stock options, vacation pay, and copies of his personnel file and

other employment records.1 Elliott also claims breach of the

covenant of good faith and fair dealing and, in the alternative,

1 Elliott originally filed this action in Rockingham County Superior Court. The case subsequently was removed to this court, which has subject matter jurisdiction based on diversity of citizenship. See Notice of Removal of Civil Action (part of Doc. #13) at 1-2. quantum meruit, based on the same underlying allegations.2 Armor

2 Because Elliott’s claims for breach of the covenant of good faith and fair dealing and quantum meruit derive from the same allegations that underlie his contract claim, I focus my jurisdictional analysis on the contract claim.

-2- Holdings has moved pursuant to Federal Rule of Civil Procedure

12(b)(2) to dismiss Elliott’s action for lack of personal

jurisdiction.3 For the reasons that follow, I grant Armor

Holdings’s motion (Doc. # 5 ) .

I. Standard of Review

When a defendant contests personal jurisdiction, the

plaintiff bears the burden of demonstrating that a basis for

asserting jurisdiction exists. See Massachusetts Sch. of Law at

Andover, Inc. v . American Bar Ass’n,

6 , 34 (1st Cir.

1998); Rodriguez v . Fullerton Tires Corp.,

1 , 83 (1st

Cir. 1997). Because no evidentiary hearing has been held in the

present case, I hold Elliott to a prima facie standard. See

3 Armor Holdings has moved in the alternative for dismissal for improper venue pursuant to Rule 12(b)(3), based on a forum selection clause in the 1996 employment contract between the parties. See Mem. in Supp. of Def.’s Mot. to Dismiss (Doc. #5) at 1 & n.1. Because I find that I cannot exercise personal jurisdiction over Armor Holdings, I do not address the venue issue.

-3- Sawtelle v . Farrell,

, 1386 n.1 (1st Cir. 1995)

(citing United Elec. Radio and Mach. Workers of Am. (UE) v . 163

-4- Pleasant S t . Corp.,

9 , 43 (1st Cir. 1993) [hereinafter

Pleasant S t . I I ] ) .

To make a prima facie showing, Elliott may not rest on his

pleadings. Rather, he must “adduce evidence of specific facts”

that support jurisdiction. Foster-Miller, Inc. v . Babcock &

Wilcox Canada,

(1st Cir. 1995); Pleasant S t . I I ,

987 F.2d at 4 4 . In conducting my analysis, I take the facts

proffered by Elliott as true and construe them in the light most

favorable to his jurisdictional claim. See Massachusetts Sch. of

Law,

4 ; Foster-Miller,

. I do not act

as a fact-finder; rather, I determine “whether the facts duly

proffered, [when] fully credited, support the exercise of

personal jurisdiction.” Rodriguez,

(citing Boit

v . Gar-Tec Prods., Inc.,

(1st Cir. 1992)).

While the prima facie standard is liberal, I need not

“‘credit conclusory allegations or draw farfetched inferences.’”

Massachusetts Sch. of Law,

(quoting Ticketmaster-

-5- New York, Inc. v . Alioto,

(1st Cir. 1994)). I

-6- consider facts offered by Armor Holdings, but only to the extent

that they are uncontradicted. See

II. Facts

Armor Holdings is a Delaware corporation with a principal

place of business in Jacksonville, Florida. See Spiller Aff.

(Doc. #10) ¶ 2 . The company sells security services and security

products, including body armor, less-than-lethal munitions, and

anti-riot equipment. See

These products are manufactured by

Armor Holdings’s wholly-owned subsidiaries. See Elliott Aff.

(attached to Doc. #9) ¶ 1 8 . Armor Holdings does not maintain an

office or bank account in New Hampshire, is not registered to do

business in New Hampshire, and owns no real property in New

Hampshire. See Spiller Aff. ¶ 3 . None of the company’s

subsidiaries are located in New Hampshire. See

Elliott was associated with Armor Holdings from September

1991 through January 1999. See Elliott Aff. ¶ 5 . During most of

that period -- from December 1991 until some time in 1997 --

-7- Elliott resided in Florida. See

Since August 1997, Elliott

has been a resident of New Hampshire. See

¶¶ 2 , 1 3 .

Over the course of their relationship, the parties formed a

series of agreements. In January 1994, Elliott entered into a

written, two-year employment contract with Armor Holdings.4 See

¶ 6 and Ex. A . In January 1996, after the expiration of the

1994 agreement, the parties entered into another written

employment contract (“the 1996 agreement”) for a term of one year

with an option (held by Armor Holdings) to renew. See

¶ 7

and Ex. B . In addition to setting forth Elliott’s compensation

and benefits, the 1996 agreement contained choice of law and

forum selection clauses in which the parties agreed that any

disputes under the contract would be governed by New York law and

4 At that time, the company was known as American Body Armor & Equipment, Inc. See Elliott Aff. ¶¶ 5 , 6. An entity with the same name became one of Armor Holdings’s wholly-owned subsidiaries. See id. ¶¶ 18-21; Spiller Aff. ¶ 4 . To avoid confusion, I refer to the parent company, the defendant in this action, as “Armor Holdings” throughout this order.

-8- be subject to the exclusive jurisdiction of the courts of New

York County, New York. See id. Ex. B ¶¶ 11(h), ( i ) . In December

1996, Elliott received a letter from Armor Holdings, informing

him that the 1996 agreement would not be renewed when its one-

year term expired on January 1 7 , 1997. See id. ¶ 9 and Ex. C .

Elliott subsequently negotiated an oral agreement (“the 1997

agreement”) with Jonathan Spiller, the chief executive officer of

Armor Holdings. See id. ¶ 1 0 . While the parties dispute whether

Elliott was an employee or a consultant under the 1997 agreement,

they agree that their relationship ended in January 1999.

Compare id. ¶¶ 1 0 , 11 with Spiller Aff. ¶¶ 1 6 , 2 0 ; Spiller Reply

Aff. (Doc. #14) ¶ 4 .

The evidence proffered by Elliott in support of his

jurisdictional claim falls into three main categories: (1)

evidence that Elliott performed work for Armor Holdings at his

New Hampshire residence; (2) evidence that representatives of

Armor Holdings advertised, marketed, and sold products in New

-9- Hampshire; and (3) evidence that Armor Holdings acquired

Safariland, Inc., a company that did business in New Hampshire.

I set forth each body of evidence in turn, then discuss specific

jurisdictional facts in the context of the subsequent analysis.

A. Elliott’s Performance of Work at His New Hampshire Residence

Elliott’s New Hampshire residence contained a home office in

which he performed various work activities for Armor Holdings

after August 1997. See Elliott Aff. ¶¶ 2 , 1 3 . These activities

included “writing reports, drafting proposals, coordinating . . .

travel plans, planning, and other company-related business.” Id.

¶ 1 3 . Between January and June 1998, Elliott helped to conduct

negotiations and due diligence investigations related to Armor

Holdings’s acquisition of the law enforcement division of Mace

Security (located in Bennington, Vermont) and a company called

Protech Armored Products (located in Pittsfield, Massachusetts).

See id. Elliott performed much of that work from his home in New

Hampshire. See id.

-10- After Armor Holdings acquired Protech Armored Products,

Elliott worked on the integration of Protech into Armor Holdings

as a wholly-owned subsidiary. See id. ¶ 1 4 . Although Armor

Holdings provided Elliott with rental housing in Massachusetts

during at least part of the time that he was engaged in the

integration project, Elliott returned to his New Hampshire home

on weekends and performed some work while in New Hampshire. See

id.; Spiller Aff. Ex. C . Elliott also used his home office to

write several proposals for government and commercial contracts

on Protech’s behalf after that company became a subsidiary of

Armor Holdings. See Elliott Aff. ¶ 1 5 .

Elliott maintains that Armor Holdings was aware that he did

company-related work at his New Hampshire home. See id. ¶ 1 3 .

Armor Holdings has attested that it never requested, required, or

authorized Elliott to do work at home or otherwise perform work

in New Hampshire, and that to the extent that Elliott did s o , he

did so “for his own convenience.” Spiller Aff. ¶ 1 9 ; see also

-11- Spiller Reply Aff. ¶ 8 . Armor Holdings also has presented

evidence that throughout most of 1998, Elliott continued to have

an office at the company’s Florida headquarters. See Spiller

Aff. ¶ 1 9 .

-12- B. Marketing and Sales in New Hampshire by Representatives of Armor Holdings

Elliott also maintains that Armor Holdings conducted

business in New Hampshire by marketing and selling products

manufactured by its subsidiaries to various New Hampshire law

enforcement agencies. Specifically, Elliott presents evidence

that Armor Holdings engaged two regional sales representatives

whose territories included New Hampshire. See Elliott Aff. ¶¶

2 1 , 2 2 , 2 3 . One of these individuals, Stephen Monette, Jr.,

served as sales manager for the New England states from February

2 1 , 1997 to April 1 7 , 1999. See Monette Aff. (attached to Doc.

#9) ¶¶ 4 , 5 , 6, 14 and Ex. A . A second, unidentified person

acted as a New England sales representative between May 1998 and

April 1 7 , 1999. See id. ¶¶ 1 3 , 1 4 . According to Elliott, these

sales representatives regularly advertised, marketed, and sold in

New Hampshire products manufactured by Armor Holdings’s

-13- subsidiaries. See Elliott Aff. ¶¶ 1 8 , 21. 5 Elliott was not

personally involved in any of this sales activity. See Spiller

Aff. ¶¶ 6, 1 0 .

Monette has provided an affidavit in support of Elliott’s

jurisdictional claim in which he details his duties and

activities on behalf of Armor Holdings. As Armor Holdings’s

sales representative, Monette was responsible for marketing and

selling products manufactured by Armor Holdings’s wholly-owned

subsidiaries. See Monette Aff. ¶¶ 7 , 1 6 . He traveled to New

Hampshire approximately once per month to make sales calls and

perform product demonstrations. See id. ¶¶ 8 , 1 5 . Approximately

5 Armor Holdings maintains that it does not “have any employees, agents or sales representatives who perform their duties from New Hampshire,” that Monette “acted as an independent sales representative on behalf of [Armor Holdings’s] subsidiaries,” that Monette was based in Massachusetts, and that Monette “was never in New Hampshire as a representative of [Armor Holdings].” Spiller Aff. ¶¶ 3 , 9. Under the prima facie standard, however, I accept as true for the purposes of jurisdictional analysis Elliott’s evidence that Monette and the unnamed sales representative both acted for Armor Holdings in New Hampshire.

-14- three times per month, Monette mailed catalogues, flyers, and

brochures advertising the subsidiaries’ products to law

enforcement agencies located throughout New Hampshire. See id.

¶¶ 9, 1 5 . These efforts resulted in some sales to New Hampshire

purchasers. See id. ¶ 11 and Exs. B , C.6 Monette also marketed

the products to distributors that, in turn, marketed and sold

them to New Hampshire law enforcement agencies. See id. ¶ 1 0 .

Only a small fraction of the total sales of the

subsidiaries’ products were made in New Hampshire. The total New

Hampshire sales figures for 1998 amount to $7,150 out of

$41,312,237 in national sales, or about .01708% of the total.

See Spiller Aff. ¶ 5 . The sales figures for the first half of

1999 show a similar pattern, with only $9,050 out of $25,327,955

6 Although I am assuming for purposes of jurisdictional analysis that Monette was acting as a sales representative for Armor Holdings rather than for its subsidiaries, all but one of the invoices appended to Monette’s affidavit as proof of his New Hampshire sales were issued by Defense Technology Corporation of America, one of Armor Holdings’s subsidiaries. See Monette Aff. Exs. C , D.

-15- (or .036%) made to New Hampshire purchasers. See id. ¶ 6.

C. Armor Holdings’s Acquisition of Safariland, Inc.

Finally, Elliott claims that Armor Holdings did business in

New Hampshire by virtue of its acquisition of a company called

Safariland, which became another wholly-owned subsidiary of Armor

Holdings. According to Elliott, Safariland manufactures a

variety of law enforcement equipment, including body armor,

holsters, and belts. See Elliott Aff. ¶ 2 2 . Elliott has alleged

on information and belief that these products are sold in New

Hampshire. See id. Armor Holdings has provided the following

sales figures for Safariland: $45,949,635 in total sales in 1998,

$38,587.50 of which occurred in New Hampshire; $23,695,309 in

total sales from January to August 1999, $49,652.70 of which

occurred in New Hampshire. See Spiller Aff. ¶ 7 .

III. Discussion

For purposes of assessing personal jurisdiction over a

nonresident defendant, “a federal court exercising diversity

-16- jurisdiction ‘is the functional equivalent of a state court

sitting in the forum state.’” Sawtelle,

(quoting

Ticketmaster,

0 4 ) . Accordingly, I must determine

whether jurisdiction is proper under both the New Hampshire long-

arm statute and the due process requirements of the federal

constitution. See id.; Foster-Miller,

. The New

Hampshire long-arm statute applicable to foreign corporations,

see

-A:15.10 (Supp. 1998), has been

interpreted to be coextensive with federal constitutional limits

on jurisdiction. See Sawtelle,

(citing McClary

v . Erie Engine & Mfg. Co.,

2 , 55 (D.N.H. 1994)).

As a result, “the traditional two-part personal jurisdiction

inquiry collapses into the single question of whether the

constitutional requirements of due process have been met.”

McClary,

5 . Therefore, I proceed directly to

the due process analysis.

The due process clause precludes a court from asserting

-17- jurisdiction over a defendant unless “the defendant’s conduct and

connection with the forum State are such that [it] should

reasonably anticipate being haled into court there.” World-Wide

Volkswagen Corp. v . Woodson,

(1980). The

“constitutional touchstone” for personal jurisdiction is “whether

the defendant purposefully established ‘minimum contacts’ in the

forum State.” Burger King Corp. v . Rudzewicz,

(1985) (citing International Shoe C o . v . Washington,

(1945)); see also Sawtelle,

. The

inquiry into “minimum contacts” is necessarily fact-specific,

“involving an individualized assessment and factual analysis of

the precise mix of contacts that characterize each case.”

Pritzker v . Yari,

3 , 60 (1st Cir. 1994). A defendant

cannot be subjected to a forum state’s jurisdiction based solely

on “random,” “fortuitous,” or “attenuated” contacts. Burger

King,

(quoting Keeton v . Hustler Magazine, Inc.,

7 0 , 774 (1984); World-Wide Volkswagen,

)

-18- (internal quotation marks omitted). Rather, “it is essential in

each case that there be some act by which the defendant

purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the benefits and

protections of its laws.”

(quoting Hanson v . Denckla,

(1958)).

A court may assert authority over a defendant by means of

either general or specific jurisdiction. See Massachusetts Sch.

of Law,

(citing Donatelli v . National Hockey

League,

(1st Cir. 1990)); Foster-Miller,

. A defendant who has engaged in continuous and

systematic activity in a forum state is subject to general

jurisdiction in that forum with respect to all causes of action,

even those unrelated to the defendant’s forum-based activities.

See Phillips Exeter Academy v . Howard Phillips Fund, Inc.,

(1st Cir. 1999) (citing Helicopteros Nacionales de

Colombia, S.A. v . Hall,

(1984); Donatelli, 893

-19- F.2d at 462-63). A court may exercise specific jurisdiction, by

contrast, only when the cause of action arises from, or relates

t o , the defendant’s contacts with the forum. See id.; Pritzker,

0 . “[T]he extent of the required jurisdictional

showing by a plaintiff depends upon whether the litigant is

asserting jurisdiction over a defendant under a theory of

‘general’ or ‘specific’ jurisdiction.” Sawtelle,

n.3 (citing Ticketmaster,

n . 3 ) . Here, Elliott

contends that Armor Holdings is subject to both general and

specific jurisdiction in New Hampshire. See Mem. in Supp. of

Pl.’s Opp’n (Doc. # 9 ) at 1 2 .

-20- A. Specific Jurisdiction

The First Circuit has developed a tripartite test for

determining whether an exercise of specific jurisdiction comports

with due process. The analysis consists of an inquiry into (1)

relatedness, (2) purposeful availment (or “minimum contacts”),

and (3) reasonableness. See Massachusetts Sch. of Law,

5 ; Nowak v . Tak How Invs., Ltd.,

(1st

Cir. 1996). An affirmative finding on each of these three

elements is required to support an assertion of specific

jurisdiction. See Phillips Exeter,

. However,

“the relative strength or weakness of the plaintiff’s showing on

the first two elements bears upon the third element (the overall

fairness of an exercise of jurisdiction).”

at 288 n.1

(citing Ticketmaster,

0 7 ) .

In a contract action such as Elliott’s, the mere existence

of a contractual relationship between an out-of-state defendant

and a forum-state plaintiff is insufficient, in itself, to

-21- establish jurisdiction in the plaintiff’s home forum. See Burger

King,

; Phillips Exeter,

; Ganis

Corp. of California v . Jackson,

(1st Cir.

1987); Bond Leather Co., Inc. v . Q.T. Shoe Mfg. Co., Inc.,

(1st Cir. 1985). Under the “contract-plus”

analysis adopted by the Supreme Court in Burger King, the

contract between the parties is merely an intermediate step in an

ongoing process. See United Elec., Radio and Mach. Workers of

Am. v . 163 Pleasant S t . Corp.,

, 1090 (1st Cir.

1992) [hereinafter Pleasant S t . I ] (citing Burger King,

7 9 ) , appeal after remand,

(1st Cir. 1993); Ganis,

(same). Accordingly, to determine whether Armor

Holdings purposefully established minimum contacts with New

Hampshire, I must evaluate the parties’ “‘prior negotiations and

contemplated future consequences, along with the terms of the

contract and the parties’ actual course of dealing.’” Phillips

Exeter,

(quoting Burger King,

7 9 ) .

-22- Moreover, I must make my assessment of Armor Holdings’s New

Hampshire contacts in light of “all of the communications and

transactions between the parties, before, during and after the

consummation of the contract.” Ganis,

. 6 With

these principles in mind, I apply the tripartite test for

specific jurisdiction.

1. Relatedness

Under the relatedness requirement, I must determine whether

Elliott’s claim arises out o f , or relates t o , Armor Holdings’s

6 In Ganis, the First Circuit considered a number of fact- specific “plus” factors in its “contract-plus” analysis, including: (1) the location where payments under the contract were to be sent; (2) a choice of law provision in the contract selecting the forum state’s laws as governing law; and (3) the use of form contracts that bore the plaintiff’s forum-state address. See

. I discuss the first of these factors below, in the context of the relatedness requirement. The second and third factors do not apply to the facts of the present case, which involves both a written contract (the 1996 agreement) and an oral contract (the 1997 agreement), because: (1) the choice of law provision contained in the 1996 agreement designated New York law, not New Hampshire law, as governing, see Elliott Aff. Ex. B ¶ 11(i); and (2) the 1996 agreement lists Florida addresses for both Elliott and Armor Holdings. See

-23- New Hampshire contacts. See Phillips Exeter,

;

Massachusetts Sch. of Law,

5 . This requirement,

which is “a flexible, relaxed standard,” Pritzker,

1 ,

is designed to focus my attention on the nexus between the

defendant’s forum-state contacts and the plaintiff’s claim. See

Nowak,

; Sawtelle

. “The

relatedness requirement is not met merely because a plaintiff’s

cause of action arose out of the general relationship between the

parties; rather, the action must directly arise out of the

specific contacts between the defendant and the forum state.”

Sawtelle,

.

As a preliminary matter, I note that only one of the three

main categories of jurisdictional evidence -- the evidence that

Elliott engaged in work for Armor Holdings at his New Hampshire

home -- is relevant to specific jurisdiction. The evidence that

Armor Holdings marketed and sold products in New Hampshire and

acquired Safariland does not relate to Elliott’s claim in any

-24- way, and thus I consider it only in my analysis of general

jurisdiction.

In a contract case, “a court charged with determining the

existence vel non of personal jurisdiction must look to the

elements of the cause of action and ask whether the defendant’s

contacts with the forum were instrumental either in the formation

of the contract or in its breach.” Phillips Exeter,

; see also Massachusetts Sch. of Law,

(formation); Pleasant S t . I, 960 F.2d at 1089 (same). The bulk

of the jurisdictional evidence produced by Elliott, including the

evidence that he engaged in work for Armor Holdings at his New

Hampshire home, does not bear on either the formation or breach

of any of the agreements that Elliott had with Armor Holdings.

Because this evidence relates to Elliott’s performance, i.e., the

subject matter of an agreement rather than its formation or

breach, it cannot satisfy the relatedness requirement.

In order to determine whether any of Armor Holdings’s New

-25- Hampshire contacts were instrumental to making or breaking

Elliott’s contract, I must first determine under which contract

Elliott is claiming a breach. In his original complaint filed in

state court, Elliott refers to both the 1996 written agreement

and the 1997 oral agreement, but does not clearly identify which

of the two contracts Armor Holdings allegedly breached. See

Pl.’s Compl. (part of Doc. #13) at 1-2. In his opposition to

Armor Holdings’s motion to dismiss, however, Elliott specifies

that his “claims relate to [Armor Holdings’s] breach of his

[1997] oral employment agreement.” Mem. in Supp. of Pl.’s Opp’n

(Doc. #9) at 1 4 . In any event, Elliott is clearly contending

that the 1997 agreement adopted the same terms concerning

compensation and benefits as were contained in the 1996

agreement.7 See id. at 3-4, 18-19; Elliott Aff. ¶ 1 0 ; Pl.’s

7 Armor Holdings disputes Elliott’s characterization of the 1997 agreement, arguing that it created a consulting relationship under which Elliott was to be paid on an hourly basis. See Spiller Aff. ¶ 1 6 ; Spiller Reply Aff. ¶ 5 . I credit Elliott’s account for the purpose of determining jurisdiction, without

-26- Compl. at 1 . Because Elliott’s underlying claim, read in the

most favorable light, appears to be that the 1997 agreement

provided for the continuation of an ongoing relationship

established under the 1996 agreement, I will consider both

agreements in my assessment of relatedness. See, e.g., Vetrotex

Certainteed Corp. v . Consolidated Fiber Class Prods. Co.,

(3d Cir. 1996) (considering for jurisdictional

purposes both 1991 contract and 1992 contract, where latter

renewed relationship formed under former, in action alleging

breach only of the 1992 contract).

The 1996 agreement provides no support for Elliott’s

jurisdictional claim. By his own evidence, Elliott demonstrates

that he resided in Florida throughout the one-year period during

which the 1996 agreement was in effect. See Elliott Aff. ¶¶ 5 ,

7 , 9. Armor Holdings has presented uncontradicted evidence that

expressing any opinion on the merits of Elliott’s underlying claims.

-27- the 1996 agreement “was negotiated, agreed t o , and entered [into]

in Florida.” Spiller Aff. ¶ 1 2 . Armor Holdings sent the

December 1 6 , 1996 letter informing Elliott that the 1996

agreement would not be renewed to Elliott’s Florida address. See

Elliott Aff. Ex. C . There is simply no evidence in the record

that Armor Holdings had any contacts with New Hampshire in

relation to the formation or termination of the 1996 agreement.8

Moreover, Elliott has provided little evidence linking

either the formation or breach of the 1997 agreement with any New

Hampshire contacts made by Armor Holdings. The record is silent

as to where the negotiations for the 1997 agreement took place.

See Elliott Aff. ¶ 1 0 ; Spiller Aff. ¶ 1 6 ; Spiller Reply Aff. ¶¶

4-6. Certainly there is no evidence that the negotiations took

place in New Hampshire or by means of any communications directed

8 The 1996 agreement also obligated Armor Holdings to reimburse Elliott for his monthly dock rental at the Pablo Creek Marina, in Florida. See Elliott Aff. Ex. B ¶ 4 ( d ) ; Spiller Aff. ¶ 12 and Ex. B ¶ 4 ( d ) .

-28- into or out of New Hampshire. Rather, it appears that the

negotiations took place some time prior to Elliott’s

establishment of his New Hampshire residence. See Elliott Aff.

¶¶ 2 , 1 0 . Under the contract-plus analysis discussed above,

“[t]he location of the negotiations is vitally important to the

jurisdictional inquiry in a case like this one. If the

negotiations occurred outside the forum state, their existence

cannot serve to bolster the argument for the assertion of

jurisdiction in the forum.” Pleasant S t . I, 960 F.2d at 1090.

The record contains some evidence suggesting a link between

the alleged breach of the 1997 agreement and Armor Holdings’s New

Hampshire contacts. The crux of Elliott’s underlying contract

claim is that Armor Holdings breached the parties’ agreement by

failing to provide him with certain stock options, benefits, and

records. Elliott has proffered evidence that he discussed the

issue of his stock options in telephone conversations with

Jonathan Spiller and other Armor Holdings employees. See Elliott

-29- Aff. ¶ 1 1 . These telephone calls lend scant support to Elliott’s

jurisdictional claim, however, because Elliott does not specify

which party initiated the calls, nor does he attest that he was

in New Hampshire when the calls were made.

More important to my analysis is correspondence between

Armor Holdings and Elliott at his New Hampshire home. On

November 9, 1998, Elliott sent a letter from New Hampshire to

Armor Holdings CEO Jonathan Spiller, in which Elliott raised the

issue of his stock options. See id. ¶ 11 and Ex. D. On March

1 8 , 1999, Elliott sent a letter to Jennifer Gouin, Armor

Holdings’s vice president of human resources, requesting issuance

of the stock options, payment for the vacation time, and delivery

of the personnel records that are the subject of the present

suit. See Spiller Reply Aff. Ex. B . On April 7 , 1999, Gouin

responded in a letter sent to Elliott at his New Hampshire home.

In her letter, Gouin communicated the company’s contention that

Elliott was not entitled to the stock options, vacation pay, or

-30- personnel records that he requested. See id. Ex. A .

The transmission of information into New Hampshire by mail

or telephone is undoubtably a forum-related contact for due

process purposes. See Massachusetts Sch. of Law,

6 ;

Sawtelle,

. The question here is whether the

correspondence and any telephone calls that Armor Holdings

employees may have placed to Elliott in New Hampshire were

instrumental to the breach of the 1997 agreement. See Phillips

Exeter,

. The answer to this question is n o .

Properly construed, the correspondence and any related telephone

calls constitute notice to Elliott of the alleged breach, rather

than the actual mechanism of breach. As such, they were not

instrumental in causing the breach and do not satisfy the

relatedness requirement. C f . Ticketmaster,

(noting that the relatedness requirement focuses on “the element

of causation”).

Finally, Elliott maintains that the breach of the 1997

-31- agreement occurred in New Hampshire because that is the place

where he felt its effects. See Mem. in Supp. of Pl.’s Opp’n

(Doc. #9) at 1 5 . Elliott thereby suggests, although he does not

provide any evidence to support the suggestion, that the

compensation and benefits that are the subject of his underlying

claim were payable to him in New Hampshire. In a recent opinion,

the First Circuit noted that “courts repeatedly have held that

where payments are due under a contract is a meaningful datum for

jurisdictional purposes.” Philips Exeter,

; see

also Ganis,

. However, as the court went on to

explain, “that fact alone does not possess decretory

significance.” Phillips Exeter,

(citing Kulko v .

Superior Court,

4 , 9 3 , 97 (1978); Hanson,

; Kerry Steel, Inc. v . Paragon Inds., Inc.,

(6th Cir. 1997)). Elliott, like the plaintiff in Phillips

Exeter, has failed to make a persuasive argument that the

location where payments were due is dispositive of the

-32- jurisdictional claim. See

This is especially true in the

present case, where the parties’ evidentiary submissions do not

clearly establish that payments were due in New Hampshire.

In sum, I conclude that Elliott has not made the necessary

prima facie showing under the relatedness requirement.9 However,

to ensure that Elliott’s jurisdictional claim receives the

fullest consideration, I proceed to the purposeful availment

9 Elliott’s reliance on Pelchat v . Sterilite Corp.,

(D.N.H. 1996) to show relatedness, see Mem. in Supp. of Pl.’s Opp’n (Doc. #9) at 14-15, is misplaced. Pelchat involved a New Hampshire employee’s claim that her Massachusetts employer violated her rights under the Family and Medical Leave Act (FMLA) by harassing her during her FMLA leave by means of repeated telephone calls to her New Hampshire home. See

at 942 & n.1. Assuming, without deciding, that the employer’s telephone calls constituted interference with the plaintiff’s benefits under the FMLA, the court concluded that the plaintiff had satisfied the relatedness requirement. See

. Pelchat is clearly distinguishable from the present case on at least two grounds: (1) because the jurisdictional analysis in Pelchat focused on a claim under the FMLA, rather than a contract claim, the requirement that the defendant’s forum-related contacts be instrumental to the formation or breach of a contract did not apply; and (2) the employer’s New Hampshire contacts in Pelchat, unlike Armor Holdings’s New Hampshire contacts in the present case, were directly related to the plaintiff’s claim.

-33- prong of the tripartite test.

2. Purposeful Availment

Under the second element of the tripartite test, I must

determine whether Armor Holdings’s forum-related contacts

constitute a purposeful availment of the privilege of conducting

activities in New Hampshire, thereby invoking the benefits and

protections afforded by New Hampshire’s laws. See Burger King,

; Phillips Exeter,

; Nowak,

. The purposeful availment requirement focuses on

“whether a defendant ‘has engaged in any purposeful activity

related to the forum that would make the exercise of jurisdiction

fair, just, or reasonable.’” Sawtelle,

(quoting

Rush v . Savchuk,

(1980)). Its function is to

ensure “that personal jurisdiction is not premised solely upon a

defendant’s ‘random, isolated, or fortuitous’ contacts with the

forum state.”

(quoting Keeton, 465 U.S. at 7 7 4 ) .

Purposeful availment rests on two cornerstones:

-34- voluntariness and foreseeability. See id.; Ticketmaster,

. First, the defendant’s contacts with the forum state

must be voluntary. See Nowak,

. This requirement

is not satisfied when those contacts are “based on the unilateral

actions of another party or third person.” Id.; see also Burger

King,

(citing Helicopteros,

1 7 ) . In

a contract case, “the place where the contract is to be

performed” may be “a weighty consideration” in determining

jurisdiction. Command-Aire Corp. v . Ontario Mech. Sales and

Serv. Inc.,

0 , 94 (5th Cir. 1992). However, “[i]f . .

. the forum plaintiff’s decision to perform [his] contractual

obligations within [his] own forum state is totally unilateral,

it cannot be viewed as purposeful on the part of the nonresident

and the weight is necessarily diminished.”

In the present

case, Elliott’s performance of work for Armor Holdings at his New

Hampshire residence resulted entirely from Elliott’s unilateral

decision to acquire a residence in New Hampshire and to work at

-35- his home office. As noted above, Armor Holdings did not request,

require, or authorize Elliott to work at his New Hampshire home

or anywhere else in New Hampshire. See Spiller Aff. ¶ 1 9 ;

Spiller Reply Aff. ¶ 8 . Because Elliot’s performance of work in

New Hampshire was based on a unilateral decision that he made for

his own convenience, without any action on Armor Holdings’s part,

he has failed to show voluntariness.10

10 I have already determined that the correspondence that Armor Holdings had with Elliott in New Hampshire (as well as any telephone calls that Armor Holdings may have made to Elliott’s New Hampshire home) are not related to the formation or breach of any agreement between the parties. I note here that these isolated and attenuated communications do not constitute a purposeful availment of the privilege of conducting activities in New Hampshire. See Massachusetts Sch. of Law,

(concluding that defendant’s participation in telephone conversation with in-forum person and subsequent mailing into forum, combined with participation in meeting in forum, were “insufficient to establish purposeful availment”); U.S.S. Yachts, Inc. v . Ocean Yachts, Inc.,

, 1 1 , 12 (1st Cir. 1990) (concluding that three letters sent into forum by defendant were insufficient to support personal jurisdiction over defendant); Kerry Steel,

(finding defendant’s telephone calls and letters into forum state to be “precisely the sort of ‘random,’ ‘fortuitous’ and ‘attenuated’ contacts that the Burger King Court rejected as a basis for haling non-resident defendants

-36- Moreover, “[e]ven if a defendant’s contacts with the forum

are deemed voluntary, the purposeful availment prong of the

jurisdictional test investigates whether the defendant benefitted

from those contacts in a way that made jurisdiction foreseeable.”

Phillips Exeter,

(citing Ticketmaster,

). An exercise of personal jurisdiction over a nonresident

defendant is foreseeable, and therefore appropriate, “where the

defendant purposefully derives economic benefits from its forum-

state activities,” Nowak,

1 7 , or makes “a purposeful

decision . . . to ‘participate’ in the local economy.” Bond

Leather,

. Similarly, the assertion of personal

jurisdiction over a nonresident defendant is foreseeable when

that defendant has reached out to establish a continuing

relationship or obligation between itself and a resident of the

forum state. See Burger King,

; Sawtelle, 70

into foreign jurisdictions”) (quoting LAK, Inc. v . Deer Creek Enters.,

(6th Cir. 1989) (internal quotation marks omitted)).

-37- F.3d at 1393.

In the present case, there is no evidence that Armor

Holdings purposefully derived any economic benefit or did any

business in New Hampshire in relation to Elliott’s employment.11

Nor is there any indication that Armor Holdings intentionally

reached out to New Hampshire to establish continuing obligations

or relationships with residents of the state. Elliott has not

produced any evidence that he was a New Hampshire resident at the

time he and Armor Holdings entered into any contractual

relationship. Rather, the record indicates that Elliott

established his New Hampshire residence only after he and Armor

Holdings entered into the 1997 agreement, the final contract

between the parties. See Elliott Aff. ¶¶ 2 , 1 0 . The

jurisdictional evidence establishes that Elliott, acting on his

11 While Elliott has produced evidence that representatives of Armor Holdings advertised, marketed, and sold products manufactured by the company’s subsidiaries in New Hampshire, these activities bear no relation to Elliott’s duties, which involved business operations, not sales. See Spiller Aff. ¶ 6.

-38- own initiative, sometimes performed work for Armor Holdings at

the New Hampshire residence he established after entering into

his final contract with the company. Based on these facts, Armor

Holdings could not have foreseen that it would be subject to suit

in New Hampshire in an action relating to Elliott’s services or

compensation. Accordingly, I conclude that Elliott has failed to

demonstrate foreseeability.

Because Elliott has not made a prima facie showing of either

voluntariness or foreseeability, he has not met the purposeful

availment requirement for personal jurisdiction. Having

determined that Elliott has failed to make the required showing

under both the relatedness requirement and the purposeful

availment requirement, I need not address the final element of

the personal jurisdiction test. See Phillips Exeter,

. Accordingly, I conclude that I lack the authority to

exercise specific jurisdiction over Armor Holdings.

B. General Jurisdiction

-39- A court may assert general jurisdiction over a defendant

even when the plaintiff’s claim is not related to the defendant’s

forum-based conduct, if the defendant has engaged in “the

‘continuous and systematic’ pursuit of general business

activities in the forum state.” Glater v . Eli Lilly & Co.,

(1st Cir. 1984) (citing Perkins v . Benguet Consol.

Mining Co.,

(1952)); see also Helicopteros,

; Massachusetts Sch. of Law,

4 . In

other words, although an exercise of general jurisdiction does

not require relatedness, it does require that the defendant’s

contacts with the forum state be much more extensive than the

“minimum contacts” necessary for specific jurisdiction. See

Donatelli,

(noting that “‘[a]lthough minimum

contacts suffice in and of themselves for specific jurisdiction .

. . , the standard for general jurisdiction is considerably more

stringent’”) (quoting Glater,

) (alteration in

original).

-40- Because relatedness is not germane to general jurisdiction,

I must consider all of Elliott’s jurisdictional facts when

assessing whether this court may exercise general jurisdiction

over Armor Holdings. As described in detail above, Elliott has

produced (1) evidence that he performed some work activities for

Armor Holdings at his New Hampshire home; (2) evidence that sales

representatives acting for Armor Holdings advertised, marketed,

and sold in New Hampshire products manufactured by Armor

Holdings’s wholly-owned subsidiaries; and (3) evidence that Armor

Holdings acquired Safariland, a company that sold its products in

New Hampshire. I consider the second and third categories of

evidence first, then turn to the first.

The First Circuit’s decisions in analogous cases demonstrate

that a nonresident defendant that advertises and uses sales

representatives in a forum state but sells an insubstantial

amount of its products in the forum state is not engaged in the

type of continuous and systematic activity that would subject it

-41- to general jurisdiction in the forum. See, e.g., Noonan v .

Winston Co.,

5 , 92-94 (1st Cir. 1998) (holding that

regular solicitations of business from forum-state companies,

travel to forum state to develop business relationship with local

company, and approximately $585,000 of in-state orders were not

sufficient to authorize general jurisdiction); Glater,

(concluding that advertising in trade journals

circulated in state, employment of eight sales representatives in

state, and sale of products to distributors in state were not

sufficient to support general jurisdiction); Seymour v . Parke,

Davis & Co.,

(1st Cir. 1970) (concluding

that employment of approximately six salesmen in state and

advertisement in state were insufficient to support general

jurisdiction). In light of these precedents, I conclude that

Armor Holdings use of sales representatives to sell to New

Hampshire purchasers a relatively small amount of the products

manufactured by its subsidiaries, combined with the acquisition

of Safariland, does not constitute the continuous and systematic

-42- pursuit of general business activities in New Hampshire.12

Elliott also seeks to add the work that he performed for

Armor Holdings at his New Hampshire residence to the calculus of

contacts for general jurisdiction. This effort is unavailing.

First, I have already determined that Elliott’s use of his home

office to engage in work for Armor Holdings was a unilateral

action that does not constitute a purposeful “minimum contact”

with New Hampshire by Armor Holdings. Therefore, Elliott’s New

Hampshire activities cannot be considered in the calculation of

general jurisdiction. Second, even in combination with the other

evidence of Armor Holdings’s New Hampshire activities, Elliott’s

performance of work in New Hampshire does not lift his

jurisdictional claim to the high standard required for an

assertion of general jurisdiction.

12 The parties have devoted substantial energy to disputing whether New Hampshire activities of Armor Holdings’s subsidiaries are attributable to the parent company. This issue is not relevant to the jurisdictional analysis in this case because Elliott has produced evidence that supports a reasonable inference that the sales representatives who sold the sub- sidiaries’ products were acting for Armor Holdings. Accordingly, I need not address the question of veil-piercing and attribution.

-43- Accordingly, I conclude that Elliott has failed to make the

showing necessary for an exercise of general jurisdiction over

Armor Holdings.

IV. Conclusion

Because Elliott has failed to satisfy the requirements of

relatedness and purposeful availment, I cannot exercise specific

jurisdiction over Armor Holdings. Moreover, because Armor

Holdings is not engaged in continuous and systematic activities

in New Hampshire, I cannot assert general jurisdiction over the

company. Accordingly, Armor Holdings’s motion to dismiss (Doc.

#5) is granted.

SO ORDERED.

Paul Barbadoro Chief Judge

January 1 2 , 2000

cc: Tara Connors Schoff, Esq. Peter S . Cowan, Esq.

-44-